.desperally In Need Of Advice

[JSM754]

I was granted my Motion for Reconsideration of a BVA Decision, which I'm told doesn't happen very often. Does anyone know what my chances are that the OBVIOUS ERRORS found by the RECONSIDERATION Panel will get corrected????

[JSM754]

Hi,

I have fought this issue w/o Representation for 13 years, and just as I get to the end of the road, once again it's the Veteran who ends up paying he price.

Docket number: 00-13-664, Citation number: 0507182 (date of Decision 14 March 2005.)

Feel fre to read the Decision and tell what you think. Keep this point in mind:

I asked for a Rating increase for my Cervical Spine Condition initally Rated 40% for the one condition. For 13 years I contended then as I still do now a rating of 40% to 20% is not an increased rating. I have the right to agree/disagree with any decision on as a whole or in part.

Read the Decision, and let's discuss what I should do next. I, and I alone filed the Motion for Reconsideration of the BVA's decision. Without a doubt I am stunned and I'm sure the NYRO is more stunned than I am. Because now they are going to have to explain how by their own admission, this error went undetected for 13 years.

[huskerfanfl]

What exactly is the error that went undetected for 13 years?

[JSM754]

What exactly is the error that went undetected for 13 years?

[JSM754]

Hi,

Sorry I'm just now responding. To answer your question, it beats the hell out of me, just exactly what the Reconsideration Panel found because they they only say that my Motion for Reconsideration was being granted under 38 U.S.C 7103 which is "Reconsideration Correction of Obvious Error." But I can tell you is what I argued in my Motion

1. The Decision made by the Board (dtd 14 March 2005) was based on Errors of Fact or Law.

2. I argued that the NYRO did not find an error made on their part, that the Issue of my Cervical Spine Condition and only that Condition was still in Appeal Status and unresolved until they had granted P&T IU. And by their own admission had an effective date of 6 June 1991.

3. I argued that the 1996 Rating Decision granting a Combined 50% Rating, my Cervical Condition had an initial rating of 40%. The Combined Rating took the one condition and made it three. The Cervical Spine Condition being rerated as 20% disabling with the two additional conditions made a Total of 50%. I disagreed with that Decision as it pertained to the Cervical Spine.

4. I argued that going from 40% to 20% was in no way an increased rating. The Cervical Condition was in pending Appeal Review Status. I contented then as I do now that I have the right to disagree with a Decision on a whole or in part. Which is exactly what I did as it pertained to my Cervical Spine Condition.

5. I argued that once I disagreed, my right to Appeal Review should have continued, which did not happen. What did happen I asked again and again for the RO to reconsider their Decision as it pertained to the Cervical Spine Condition. With every Rating Decision, the 20% was continued and some new condition was added.

6. I agrued that with every request for Reconsideration by the NYRO, was an attempt to try and resolve the Issue of the Cervical Spine Condition while waiting for Appeal Review.

7. I argued that a 3 July 2002 Rating Decision granting a Combined Rating of 60% the Cervical Spine Condition went from 20% to 30% with an Effective Date of 5 October 2000. I disagreed with the Effective Date, because the Issue of the Cervical Spine Condition was still in pending Appeal Review Status unresolved and been issued a Docket Number in 1995. (It just goes from bad to worse at this point)

The NYRO decided that I failed to Disagree in a timely manner, and only raised the Issue of the Cervical Spine at the 5 October 2000 Personal Hearing thus making 5 October 2000 the Effective Date. Fast forwarding I filed for IU in July 2002, which should come as no suprise it was denied over and over again. Finally in March 2004 it was granted with an effective date of October 2000. After being granted three different Effective

Dates, on 4 October 2004 the DRO finds that I had been correct about the Cervical Spine Condition being in Active and Open Appeal Status with an Effective Date of June 1991.

8. This is where the NYRO takes the position that although they admit to their oversight and to avoid having to explain how this could happen, they chose to submit to the BVA for Review.

9. I argued that what the NYRO certified for Appeal Review had a 2000 Docket Number. In addition I argued that once the NYRO realized what had happened and the Cervical Spine Condition in Active Appeal Status with an effective date being 1991. The NYRO knew everything had to be granted as a whole.

If this isn't enough detail, let me know. The Reconsideration Panel had to have something wrong with the Decision. If you have any advice get in touch.

[Berta]

The old BVA decision did not help me to understand the Motion you filed- which is not public record at the BVA yet-

Also it looks to me that you filed for higher cervical rating prior to- by a month- the enactment of the VCAA-

Did you ever get a VCAA letter regarding the cervical spine issue?

Maybe you didnt -due to the dates-

If you did= the potential EED and rating should have been stated in the VCAA letter ( Dingess Hartman decision affecting the VCAA)

"on 4 October 2004 the DRO finds that I had been correct about the Cervical Spine Condition being in Active and Open Appeal Status with an Effective Date of June 1991"

Is that fully documented - the DRos have to document their findings and it is kept separate from the C file-

"This is where the NYRO takes the position that although they admit to their oversight and to avoid having to explain how this could happen, they chose to submit to the BVA for Review."

Been there on that one-

The DRO, my rep at a dro hearing, and also numerous raters, in order to avoid andwering a letter from Senator Craig ,as well as considering my overwhelming medical evidence transferred my claim suddenly to the BVA.

I got it back in weeks from the BVA without docket due to their errors etc-

(Buffalo VARO)

I sent the BVA a brief letter regarding my rights as a claimant and that the Buffalo VARO had violated them.

Actually the main reason in my opinion was a CTA (cover a butt ) issue regarding a VCAA violation and I would not accept it.

In your case----1991-seems that is the date that THEY admit to for the proper EED.

I suggest that you call the BVA tomorrow-

I would try their main number-(at the BVA web site) or any number and contact person in whatever they sent you-

I also have these numbers 1-202-565-5436- and 1-202-565-9252.

I dont have the main number in my file- the latter might be the FOIA attorney for the board-

In any event- I would call the Board and ask them what you should expect at this point and will they contact you if they need more information-

I assume from all this-that the decision on this motion (the reconsideration itself)would come from the BVA itself-which is a good thing- the BVA lawyers know how to read-

BVA is user friendly- when I got that illegal transfer I was quick to call the BVA quite a few times ---as soon as they got my letter asking for remand-I want the RO to do what they are paid to do-

I am not going to sit around the BVA for 1-2 years only to get a remand anyhow-

they completely understood my position and my evidence and unlike the RO-they read and understood my evidence and in a heartbeat and I got what I wanted-

They can advise you at this point-in my opinion-

they did see something that ----you also could search reconsideration at the BVA web site and that might show what their MOS will be on this-

my only experience is with a recon request at the RO that they are currently working on-

Like everything else at VA it all takes evidence and apparently you sent in enough evidence to cause the BVA to do a new review of the older claim decision.

sorry I cant find their main number- it might be on whatever they sent you.

The Veterans Benefit Manual from NVLSP has quite a bit of info on situations similiar to yours-they devote an entire chapter to EEDs and also have info on Reconsiderations.

do you know anyone who has this manual?

Edited July 4, 2007 by Berta

[JSM754]

The old BVA decision did not help me to understand the Motion you filed- which is not public record at the BVA yet-

Also it looks to me that you filed for higher cervical rating prior to- by a month- the enactment of the VCAA-

Did you ever get a VCAA letter regarding the cervical spine issue?

Maybe you didnt -due to the dates-

If you did= the potential EED and rating should have been stated in the VCAA letter ( Dingess Hartman decision affecting the VCAA)

"on 4 October 2004 the DRO finds that I had been correct about the Cervical Spine Condition being in Active and Open Appeal Status with an Effective Date of June 1991"

Is that fully documented - the DRos have to document their findings and it is kept separate from the C file-

"This is where the NYRO takes the position that although they admit to their oversight and to avoid having to explain how this could happen, they chose to submit to the BVA for Review."

Been there on that one-

The DRO, my rep at a dro hearing, and also numerous raters, in order to avoid andwering a letter from Senator Craig ,as well as considering my overwhelming medical evidence transferred my claim suddenly to the BVA.

I got it back in weeks from the BVA without docket due to their errors etc-

(Buffalo VARO)

I sent the BVA a brief letter regarding my rights as a claimant and that the Buffalo VARO had violated them.

Actually the main reason in my opinion was a CTA (cover a butt ) issue regarding a VCAA violation and I would not accept it.

In your case----1991-seems that is the date that THEY admit to for the proper EED.

I suggest that you call the BVA tomorrow-

I would try their main number-(at the BVA web site) or any number and contact person in whatever they sent you-

I also have these numbers 1-202-565-5436- and 1-202-565-9252.

I dont have the main number in my file- the latter might be the FOIA attorney for the board-

In any event- I would call the Board and ask them what you should expect at this point and will they contact you if they need more information-

I assume from all this-that the decision on this motion (the reconsideration itself)would come from the BVA itself-which is a good thing- the BVA lawyers know how to read-

BVA is user friendly- when I got that illegal transfer I was quick to call the BVA quite a few times ---as soon as they got my letter asking for remand-I want the RO to do what they are paid to do-

I am not going to sit around the BVA for 1-2 years only to get a remand anyhow-

they completely understood my position and my evidence and unlike the RO-they read and understood my evidence and in a heartbeat and I got what I wanted-

They can advise you at this point-in my opinion-

they did see something that ----you also could search reconsideration at the BVA web site and that might show what their MOS will be on this-

my only experience is with a recon request at the RO that they are currently working on-

Like everything else at VA it all takes evidence and apparently you sent in enough evidence to cause the BVA to do a new review of the older claim decision.

sorry I cant find their main number- it might be on whatever they sent you.

The Veterans Benefit Manual from NVLSP has quite a bit of info on situations similiar to yours-they devote an entire chapter to EEDs and also have info on Reconsiderations.

do you know anyone who has this manual?

Hi,

I hope you are online. As I have said before no one is more stunned than I am, that my aMotion for Reconsideration has been granted. I keep hearing the same thing, that the BVA rarely grant Motions for Reconsideration. I guess I just got lucky. When the Board issued their Denial, there was no doubt in my mind that I had to be willing to go

all of the way. Had it not been for the fact of the SSA, needing copies of Medical Reports from my C-File, which was in Case Storage in Washington, I probably would not have found exactly what I needed. This motion for Reconsideration, was granted by The Reconsideration Panel (BVA). Do I need or do you think I ned to submit Further Argument before the Expanded Reconsideration Panel.